Hallinan Blackburn Gittings & Nott LLP

By Namita, May 24 2018 12:15PM

Many of you will have heard of “GDPR” – for those who have not, it is not a former East European country but a new approach to the thorny issue of data protection. Up to now the rules may have appeared somewhat cloudy and requests for information have often been met with a “computer says no” response. Well, things are changing.

In essence the General Data Protection Regulations which come into effect on 25 May 2018 provide a new regime where a person’s data or “personal information” is held by organisations such as solicitors’ offices, banks or doctors’ surgeries. It defines and sets out the responsibilities for the organisation as a “data controller” and its staff as “data processor(s)” whilst clarifying the rights of the individual – the “data subject” - to have access to and control of that information (and also to request its destruction). Like all other firms we are publishing a “privacy policy” which explains in detail how we will deal with such information and what can be asked of us.

In practice the new regime does not change things in relation to, for example, requests from outside parties for disclosure of a person’s data; if, for instance, someone out of the blue were to ‘phone a solicitor and ask for a client’s mobile number then s/he will continue to receive the same short shrift as before (we hope). Rather the new regulations are concerned with the rights of the “data subject” in terms of access to and control of the information held by an organisation and also in making requests for its deletion or destruction. The consequences of breaching the regulations are potentially severe – businesses could be fined of hundreds of thousands of pounds and in some cases, individuals may face prosecution.

The GDPR regime requires us as a firm to think carefully about how – and why - we retain information, how we store it, how we protect and safeguard it and ultimately how we dispose of it. From a business point of view there may be headaches but since we are all at the same time “data subjects” then perhaps we can adopt a more positive approach; after all, it could just as easily happen to us.

By Namita, Nov 21 2017 12:59PM

The Law Commission has put forward a proposal for a Sentencing Code; the consultation is open until 26th January 2018 and they anticipate its clearing Parliament in the summer coming into effect as early as 2019. For an overview and the relevant documentation visit https://www.lawcom.gov.uk/project/sentencing-code/#the-sentencing-code Uniquely the Government’s legislation website contains the draft Bill – the link will take you to it.

The idea is based on what is seen in some circles as the ridiculously complicated state of sentencing law in this country. As an exercise the Law Commission produced a print-out of sentencing legislation in force and it ran to over 1,300 pages – that’s without the sentencing guidelines and case-law. Robert Banks, editor of Banks on Sentence, apparently conducted a review of case reports from the Court of Appeal and identified that in 36% of appeal cases in the study, the Judge at first instance had passed a sentence which was unlawful – not excessive but actually one in which s/he did not have the power to do what s/he did. This only picked up the appeals as well: there may well have been many more cases where either the people involved simply did not identify an irregularity or having done so decided to sit on their hands because, for example, it suited their client better so to do.

The Code is not intended to change the law but merely to bring it “under one roof” in order to achieve the aims of “clarity, confidence and efficiency”. (The Ministry of Justice believes that this could save £25million per year in the costs of rectifying unnecessary mistakes.) In principle, anyone convicted after the date of commencement would be sentenced according to the Code irrespective of the date of offence. This mirrors the sentencing guideline approach currently in use. The Law Commission speaks of a clean sweep – removing all the contradictory and disparate legislation and starting afresh from Day One with this Code. There would be no need to refer to old legislation.

It will be enacted as a piece of consolidation legislation which will occupy minimal Parliamentary time (the consensus being that our lords and masters have certain other things on their minds right now) and it will not introduce new law, alter any provisions relating to minimum or maximum sentences, interfere with judicial discretion or affect levels of sentence. In addition it does not represent an attempt to codify the common law on sentence, such as it survives. The Code will include cross-referencing to relevant provisions which should make navigation through the provisions much simpler and it will be used as an attempt to correct errors and anomalies, for example where certain sentences such as Rehabilitation Activity Requirements may be available dependent on the date of offence.

The protection under Article 7 ECHR will remain so that a person may not be sentenced to a higher penalty than existed at the date of commission of an offence – particularly relevant at a time when “historic cases” are so prevalent. In addition, “recidivist premiums” (for example, the requirements with reference to 30th November 1999 for a minimum sentence in residential burglary, the so-called “third-strike” provisions) will be unaffected. The current position regarding the victim surcharge will also be maintained. Some commencement dates will be removed (this reflects s.104 Deregulation Act 2015 which empowers Ministers to replace commencement dates in legislation with the date on which the provision comes into force). Future amendments to statute relating to issues of sentencing will then be done with explicit reference to the Code and it will contain on its face a statement of the date on which the provision comes into force.

The Sentencing Code has the support of some significant names in this field of law and thus one is led to think that it is happening. Will it make things better? Can things get any worse? Codified laws are common across Europe as a legacy of Napoleon and often appear from the outside to be simple and clear methods of stating the law; however European universities still have huge law libraries with shelves groaning under the weight of case reports and academic arguments as to what the provisions mean and how they should be interpreted. Modern statutory language and phraseology is designed and intended to make the law more accessible and understandable for everyone but those of us of a more Jurassic Period persuasion would argue that the “old” ways tended to be more certain, at least for the lawyers, and to allow for only one interpretation.

If you have an opinion then the Law Commission would like to hear from you.

The Criminal Justice System is a dynamic environment with changes occurring frequently. With this constantly changing landscape both in the law and funding, our focus is always on access to justice and ensuring we do the best job we possibly can for our client. In each of our blog posts, we aim to bring you our view on a topic that is important to each of us. Please do check back to see the latest post which we will link to on our Twitter account @hallinans.